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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> F v Cleveland Police Authority (Disability Discrimination : Disability) [2012] UKEAT 0586_11_1403 (14 March 2012) URL: http://www.bailii.org/uk/cases/UKEAT/2012/0586_11_1403.html Cite as: [2012] UKEAT 0586_11_1403, [2012] UKEAT 586_11_1403

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APPEARANCES

 

For the Appellant	MS KARON MONAGHAN (One of Her Majesty's Counsel) Bar Pro Bono Unit
For the Respondent	MR COLIN BOURNE (of Counsel) Instructed by: Cleveland Police Headquarters Legal Service P O Box 70 Ladgate Lane Middlesbrough TS8 9EH


 


SUMMARY

DISABILITY DISCRIMINATION – Disability

PRACTICE AND PROCEDURE – New evidence on appeal

Disability issue below. Employment Tribunal found Claimant not disabled, based at least in part on her failure to produce relevant medical records leading to Employment Tribunal taking an adverse view of her credibility generally.

On appeal, missing records admitted under Ladd v Marshall principles by way of fresh evidence.

On this basis (perversity challenge having failed) case remitted to same Employment Tribunal, if practicable, to reconsider disability question.


 


HIS HONOUR JUDGE PETER CLARK

1. This is the full hearing of an appeal by Miss F, Claimant before the Thornaby Employment Tribunal, against the reserved Judgment of a full Employment Tribunal chaired by Employment Judge Forrest sitting on a Pre-Hearing Review over 5 days, promulgated with Reasons on 2 March 2011, finding that she was not disabled within the meaning of s.1 Disability Discrimination Act 1995 (DDA), in force at the material times.

Background

2. The Claimant commenced employment with the Respondent Police Authority on 4 February 2004. She was a civilian worker engaged on administrative duties. She was dismissed on grounds of alleged misconduct in February 2010.
3. At the PHR the Employment Tribunal had three combined forms ET1 before them. A fourth claim was dismissed. The combined claims raised alleged failures to make reasonable adjustments during the period May 2006 – February 2010; victimisation contrary to s.55 DDA; and that her dismissal was unfair, directly discriminatory and a failure to make reasonable adjustments. Issue was taken by the Respondent as to whether or not the Claimant was disabled, hence the PHR before Employment Judge Forrest's Tribunal. We understand that that Tribunal panel was brought in from the Leeds region due to a perceived conflict of interest preventing a panel from the Newcastle region being appointed.

The Employment Tribunal decision

4. The Employment Tribunal heard oral evidence from the Claimant, her friend Miss Harding and two witnesses called by the Respondent. In addition, they heard from and read the written reports of Dr Julia Bradbury, Consultant Psychiatrist, the jointly appointed independent medical expert and from Dr S, the Claimant's GP. She has always been a patient of her local medical practice, save for a period of 4 years whilst attending University, when she attended the local student practice. The significance of that period, 1995-99 will appear later.
5. Central to the Employment Tribunal's conclusions, we understand from reading their Judgment and Reasons, was their view of the Claimant's credibility as a historian. That is unsurprising. Although we shall deal with the applicable law in this Judgment, ultimately the determination of the disability issue depends to a significant extent on the Employment Tribunal's findings of primary fact. Medical opinion evidence will assist employment tribunals but is not determinative of the question posed to the fact-finding Employment Tribunal.
6. The Employment Tribunal's view of the Claimant's credibility appears particularly from paras. 39-44 and 81-84 of their Reasons. In particular, at para. 81 the Employment Tribunal noted the Claimant's oral evidence that during a 7 year period from 1993 she was prescribed anti-depressants; evidence which went to an issue raised under para. 2(2) of Schedule 1 DDA, to which we shall return. The Employment Tribunal, in terms (para. 82) were not prepared to accept that account given by the Claimant in the absence of medical records. There was good reason for that conclusion; as the Employment Tribunal record in para. 82 the need to provide full disclosure of the Claimant's medical records was highlighted at earlier Case Management Discussions and none had been produced to cover that period.
7. Moreover, we note from para. 11.1 of Dr Bradbury's report dated 29 March 2010, setting out her opinion, that she relied heavily on the Claimant's GP records and Occupational Health records. It necessarily follows that Dr Bradbury did not see what we now know to be the Claimant's full relevant medical records.
8. Based on the evidence which they heard and read the Employment Tribunal concluded, having considered the four ingredients of disability contained in s.1 DDA, that:

(1) The Claimant had a mental impairment during a 3 month absence from work in early 2006 (para. 50).

(2) During that time her inability to go to work had a substantial adverse effect on normal day to day activities; however that impairment did not affect any of the 8 capacities listed at para. 4(1) of Schedule 1 to the DDA, in particular (a) mobility or (g) memory or ability to concentrate, learn or understand (para. 66).

(3) Although, at times, the Claimant had a mental impairment, which was recurrent, it was not long term because no single episode lasted over 12 months. It never had a substantial adverse effect, discounting the effects of treatment (the deduced effect) and although there were times when her abilities to carry out day to day activities were substantially affected, there was no adverse effect on any of the 8 capacities. She was not disabled (para. 102).

It followed that all her disability discrimination claims (save for victimisation) were dismissed.

Fresh evidence

9. The Claimant's appeal was initially rejected on the paper sift by Keith J under EAT rule 3(7). However, on the basis of a fresh Notice of Appeal lodged by the Claimant, then acting in person, under rule 3(8) Underhill P directed that the appeal be considered before a full division of the EAT at an all parties preliminary hearing. That relatively unusual course (normally preliminary hearings are appellant only, with written representations from the respondent) was entirely appropriate in circumstances where the Claimant had made an application to admit fresh evidence on appeal, accompanied by a witness statement in support of that application.
10. The preliminary hearing was held before this same division on 17 January 2012. The bulk of that full day's hearing was taken up with the fresh evidence application. It is also right to mention that at that hearing the Claimant had the benefit of representation by Ms Karon Monaghan QC, instructed by the Bar Pro Bono Unit. She has continued to have conduct of her case through to the full hearing of the appeal on 28 and 29 February 2012. We have been greatly assisted by the characteristically thorough presentation of the Claimant's case by Ms Monaghan, as we have from the submissions of Mr Colin Bourne, who has represented the Respondent throughout.
11. We cannot overstate the difficulty of the task faced by applicants who wish to adduce fresh evidence on appeal which was not led below. The reason is simple. It is for the parties to bring the whole of the evidence on which they rely before the fact-finding employment tribunal. The principle of finality of litigation is engaged. In these circumstances it will only be in exceptional cases that such an application will succeed.
12. The principles upon which fresh evidence will be admitted on appeal are well-established, based on the Ladd v Marshall [1954] 3 AER 745 test, adopted in this jurisdiction by Popplewell P in Wileman v Minilec Engineering Ltd [1988] ICR 318 and are enshrined in para. 8.2 of the EAT Practice Direction. First, the evidence could not have been obtained with reasonable diligence for use at the Employment Tribunal PHR hearing. Secondly, the evidence must be relevant and would probably have had an important influence on the hearing and thirdly, it must be apparently credible.
13. As Underhill P observed in Adegbuji v Meteor Parking Ltd (EAT/1570/09, 21 April 2010) para. 7, parties are encouraged to apply initially to the Employment Tribunal for a review so that an application to admit fresh evidence may be considered by the Employment Tribunal which heard the case. Normally, an appeal will be stayed pending the outcome of an Employment Tribunal review application.
14. In this case a review application was made by solicitors, Thompsons, then assisting the Claimant, on 16 March 2011, shortly after promulgation of the PHR Judgment. That application focussed on the absence of medical records, particularly relating to the period when the Claimant was a student, the absence of which played a significant role in the Employment Tribunal's assessment of the Claimant's credibility, itself highly material to the Employment Tribunal's determination of the disability question. However, those records were not produced in support of the application, which was dismissed by Employment Judge Forrest on 30 March 2011 (save that the s. 55 DDA victimisation complaint, not dependent on the Claimant being disabled, was permitted to proceed to a merits hearing).
15. The fresh evidence application before the EAT falls into two parts. First, the Claimant wished to adduce oral evidence from a number of witnesses, not called below (the witness evidence). We had no hesitation in rejecting that part of the application (with one exception to which we shall return); the witness evidence plainly could, with reasonable diligence, have been called below.
16. The second part of the application related to the Claimant's medical records for the period 1993-2001, including her University years, 1995-1999. The one additional witness statement (other than that of the Claimant) which we took into account was a short statement signed by Mr Attala of Thompsons, who had been advising the Claimant from time to time (he does not presently instruct Ms Monaghan). He states that since the PHR Judgment in March 2011 he had contacted the Claimant's GP practice, seeking the missing medical records. After chasing up his initial request on a regular basis, at a time when the person dealing with records was on maternity leave, he finally received a full set of the records on 16 August 2011. It is in respect of those records that the real contest took place at our preliminary hearing.
17. At that preliminary hearing the Claimant was called to give oral evidence in accordance with her witness statement in support of the fresh evidence application and was cross-examined by Mr Bourne. We therefore had the opportunity to make our own assessment of her credibility on this limited issue.
18. It was her evidence that she requested a full set of her medical records from the local practice in February/March 2009 following a CMD order made by the Employment Tribunal in these proceedings on 22 January 2009; (the relevant CMD orders are set out at para. 82 of the PHR Judgment Reasons). We were shown the relevant patient consent form completed on 20 February 2009 (Bundle (B) page 563), together with a copy of her cheque for £49.50 (B 294) made out in favour of Dr C at the practice. The significance of that fee is that it fits with the maximum charge of £50 made by the surgery for all records, kept both manually and on computer (B 565). It seems, we accept, that she made two separate attempts to obtain her full medical records and spoke to the surgery Practice Manager.
19. Mr Bourne pointed out that in the summer of 2010, well before the PHR commencing on 29 November 2010, Thompsons were instructed on her behalf. That is so, however we do not criticise that firm for not pursuing the further medical records, the initial batch disgorged by the surgery having been released in 2009.
20. However, he raised a suspicious entry appearing (B 331) in the records disclosed in August 2011 relating to her visit to the surgery on 23 February 2009, when she saw Dr S who gave evidence at the PHR. It reads:

"Concerned about entries in previous medical records which she doesn't want releasing."

21. Had she sought to conceal relevant medical records in these proceedings? The answer is no; we accepted her explanation; it was that she was concerned that records relating to her parents' earlier separation may be made public (see PHR Reasons, para. 81). For completeness we should add that at the subsequent full hearing before us it emerged that that particular entry had been in the bundle of documents used at the PHR (B 575); it was therefore not itself concealed from the Employment Tribunal. Mr Bourne fairly acknowledged that he had not noted that entry at the PHR and thus, we infer, did not cross-examine either the Claimant or Dr S about that entry.
22. On that evidence, returning to the Ladd v Marshall test, we found that the Claimant had pursued her full medical records prior to the PHR with reasonable diligence. The failure to produce the full records lay fairly and squarely with the surgery administration.
23. As to the new medical records for 1993-2001, we concluded that they were likely to have an important influence on the outcome of the PHR, first because the Claimant's credibility was understandably undermined in the view of the Employment Tribunal because she had not produced medical records which confirmed her oral evidence that she had been on anti-depressants for some seven years, starting in her early teens, following her parents divorce and continuing through her University years (see Reasons, paras. 81-82); the new medical records do apparently confirm that account. Secondly, because the prescribed medication during that period may well, subject to medical opinion, produce the necessary deduced effect to permit the Claimant to rely on the provisions of para. 2(2) of the First Schedule to the DDA (Reasons, para. 81 and see below).
24. Finally, there was no dispute but that the records were apparently credible in the sense that they were medical records produced by the appropriate medical practices.
25. For these reasons we acceded to the Claimant's application in respect of the new medical records. We should add that we are further fortified in that conclusion having subsequently been shown the approach of Elias LJ, giving the leading judgment of the Court of Appeal in St Andrews School v Blundell [2011] EWCA Civ 427, to the question of fresh evidence (there raised for the first time before the Court of Appeal); see paras. 27-40, in the context of the full hearing of this appeal.
26. We have endeavoured to give full reasons for our determination of the Claimant's fresh evidence application at the preliminary hearing in this composite Judgment first because, somewhat to our surprise, at the full hearing Mr Bourne appeared to be under the misapprehension that the issue as to whether the new medical records would probably have had an important influence on the outcome of the PHR remained live at the full hearing which we directed should take place following the preliminary hearing. As Ms Monaghan reminded us and Mr Singh's note recorded, I gave short extempore reasons for admitting the new medical evidence at the end of the preliminary hearing, which necessarily covered all three limbs of the Ladd v Marshall test; indeed, our preliminary hearing order, seal-dated 18 January 2012 and sent to the parties records:

"The Tribunal Orders that the (fresh evidence) application be granted to the extent that the medical notes at (pages listed) in the EAT Core Bundle can be admitted."

There was nothing further to be determined in relation to that application at the full hearing.

27. Secondly, having heard full argument in the appeal over two days at the full hearing the admission of the new medical evidence necessarily required us to allow the appeal and remit the disability issue to the Employment Tribunal, as both counsel acknowledged subject (a) to Ms Monaghan's separate argument that the appeal be allowed and that we declare that the Claimant was disabled at all relevant times; that argument depending principally on her perversity grounds of appeal and (b) alternatively, if the matter is remitted, whether it should return to the same or a different Employment Tribunal. We address both those questions below, but first we must turn to the relevant law.

The law

28. For the purposes of the DDA, which applies in this case, 'disability' is defined in s.1 DDA, subject to the provisions of Schedule 1.
29. In setting out the legal framework (paras. 31-35) the Employment Tribunal correctly set out the 4-fold requirements of s.1, identified by Morison P in Goodwin v Patent Office [1999] ICR 302 (to which, among other cases, they were referred; see para. 35).

(1) Does the Claimant have a (here) mental impairment? (the impairment)

(2) Does that impairment affect the Claimant's ability to carry out normal day-to-day activities in respect of one of the 8 capacities listed at Schedule 1, para. 4(1)? (the adverse effect)

(3) Is the adverse effect substantial, that is, more than minor or trivial? (substantiality)

(4) Is the adverse effect long term (see Schedule 1, para. 2; in particular para. 2(2), where the impairment ceases to have a substantial adverse effect but is to be treated as having that effect if the effect is likely to recur).

Pausing there, we respectfully agree with Note 8 to the Judgment of Underhill P in J v DLA Piper [2010] ICR 1052, 1082 D, that the construction of 'likely' adopted by the House of Lords in Boyle v SCA Packaging Ltd [2009] ICR 1056 in relation to Schedule 1 para. 6(1) – that is, 'could well happen' – would apply equally to para. 2(2) (the long term condition).

30. Having set out the test it is convenient at this stage to deal with a point of construction raised by Ms Monaghan in relation to substantiality, as to which we have been shown no authority. It is this. Section 1 refers to a mental impairment 'which has a substantial… adverse effect on his ability to carry out normal day-to-day activities'. Schedule 1 para. 2(2) refers to a substantial adverse effect on a person's ability to carry out normal day-to day activities; however, she submits, the substantiality threshold is only applied to the ability to carry out normal day to day activities; it is not applied to the effect on one or more of the 8 capacities listed at para. 4(1) of Schedule 1. Mr Bourne agreed with that analysis, although not with Ms Monaghan's challenge to the Employment Tribunal's reasoning on this basis, to which we shall return. In the absence of argument to the contrary and on our reading of the legislation we accept Ms Monaghan's proposition as a matter of law; substantiality is to be applied to the normal day to day activities question, not the capacities affected.
31. Finally, the Employment Tribunal considered and took into account the relevant (2006) Guidance issued by the Secretary of State (the Guidance).

The current grounds of appeal

32. Following the preliminary hearing the Claimant lodged draft re-amended grounds of appeal settled by Ms Monaghan. I gave permission for all but one ground (ground 16; the European law point; to which we shall return) to proceed to the full hearing. We shall deal with those grounds, following the groupings made by Ms Monaghan.

Day to day activities (grounds 1-7)

33. Ms Monaghan challenges the Employment Tribunal's approach to what amount to normal day to day activities. She has taken us to para. 59, where the Employment Tribunal note the Guidance (D7) which states "normal day-to-day activities do not include work of any particular form". Whilst that is what the Guidance says, Ms Monaghan submits that the Employment Tribunal failed to consider whether the Claimant's work involved normal day-to-day activities affecting one of the 8 listed capacities in Schedule 1, para. 4(1). We think that challenge fails on the facts found; the Employment Tribunal directed themselves at para. 59 that the question was whether any of the 8 capacities was affected, 'at work or elsewhere'. We therefore do not accept that the Employment Tribunal overlooked the distinction to be found in Law v Rush [2001] IRLR 611 and Paterson v Metropolitan Police Commissioner [2007] ICR 1528, para. 43, to which we (but not the Employment Tribunal) were referred.
34. Secondly, we agree with Mr Bourne that activities such as purchasing a car or a house (Reasons, para. 89) were normal activities, but not everyday activities.
35. Next, Ms Monaghan challenges the Employment Tribunal's findings in relation to the Claimant's evidence about her difficulties in taking exams (she achieved a 2:1 degree at University) at para. 84. She submits that taking an examination is a normal day to day activity: see Paterson, para. 66, per Elias P. However, the real difficulty which the Claimant faces is that the Employment Tribunal was not prepared to accept her evidence about that period in her life absent the medical records which we have now admitted on appeal. It is that overarching credibility finding which we think falls to be addressed on remission to the fact-finding Tribunal, of which more later.

The 8 capacities (grounds 8-12)

36. It is an essential part of the perversity challenge in this appeal that we focus on the 3 month period in early 2006 when the Claimant was absent from work through sickness. As to that period the Employment Tribunal accepted that the Claimant suffered from a mental impairment, adjustment disorder, as found by Dr Bradbury (para. 58) and that being unable to go to work was a substantial adverse effect; however they went on to find (para. 66) that the impairment did not affect any of the 8 capacities listed in para. 4(1) Schedule 1.
37. It seems that the Employment Tribunal were troubled by the apparent assumption by the EAT in DLA Piper (para. 49) that one of the capacities was affected (see also Reasons, para. 65). Ms Monaghan submits that it was plain and obvious on the findings of fact in Piper that at least one of the capacities was effected during that Claimant's four months off work, leading to a finding of perversity by the EAT (para. 47). Further, she submits that this Employment Tribunal misdirected itself (para. 67) in requiring the Claimant to show a substantial impact on one of the capacities, when substantiality is not material when considering that effect (see earlier).
38. Whilst we accept that here the Employment Tribunal misdirected itself as to the application of the substantiality threshold as a matter of law, as a matter of fact it is immaterial because the Employment Tribunal found on the evidence that none of the capacities had been affected and that comes back to their assessment of the Claimant which in turn was at least in part dependent on the conclusion that the Claimant's evidence as to the 7 year period between 1993-2001 could not be accepted in the absence of medical records. Hence they refer, at para. 68, to the lack of persuasive evidence of impact on the specific capacities. Their view may well have been different had the new medical records been put in evidence below. At all events, we are unable to say that, on the evidence before it, the Employment Tribunal reached a perverse conclusion as to the absence of effect on any of the 8 capacities.

Substantiality (grounds 13-15)

39. Here the contention is that the Employment Tribunal reached a perverse conclusion at para. 71 in finding that although the Claimant suffered from a mental impairment in June 2007, based on the medical evidence of Dr Mackay, which had an adverse effect on the Claimant, the effect was not substantial. We reject that contention, bearing in mind the high hurdle facing appellants relying on the perversity ground. It is a question of fact for the Employment Tribunal whether adverse effects on normal day to day activities cross the 'more than minor or trivial' threshold. There is no indication here that the Employment Tribunal was applying the substantiality test to the 8 capacities; nor do we think that at this point in their reasoning were the Employment Tribunal falling into the trap of failing to compare what the Claimant could do without the impairment and with the impairment (see Paterson). Any such error at para. 88, relating to 'concentration', does not assist the Claimant on the adverse finding at para. 71.
40. More importantly, we should deal with the long term condition. On any view the Claimant did not, on the Employment Tribunal's findings, suffer the adverse effect of a mental impairment for a period of 12 months (Schedule 1, para. 2(1)(b)). Thus she would need, in this appeal, to show (a) that the 3 month period off work in 2006 finding was perverse (b) that the finding at para. 71 was perverse and (c) overcome the fact that the Employment Tribunal accepted Dr Bradbury's opinion and that included (B 425) her answer 'no' to a specific question (No. 6) in relation to Schedule 1 para. 2(2) (albeit incorrectly posed in relation to the likelihood of recurrence). Since she has failed on all three counts there is no prospect of our reversing the Employment Tribunal's decision.

Fresh evidence

41. On the other hand, it is plain that since the Claimant's credibility was central to each of the findings challenged in this appeal, it is, we think essential that the case returns to the Employment Tribunal, with the benefit of additional medical opinion based on the new medical records which we have admitted before us and which are therefore admissible before the Employment Tribunal on remission to reconsider credibility and the effect that may have on the Employment Tribunal's assessment of the period 1993-2001 and its effect on the para. 2(2) likelihood of recurrence question.

European law

42. I refused permission to amend to add ground 16 because it was a point not taken below (as Ms Monaghan acknowledges) on ordinary Kumchyk principles (see Kumchyk v Derby CC [1978] ICR 1116). We note that the Claimant was represented by counsel, Mr Trory, below.
43. At ground 16 Ms Monaghan wishes to argue that having found as fact that the Claimant had a mental impairment and that it substantially adversely affected her ability to work in early 2006 (she was absent for 12 weeks) the Employment Tribunal's finding that she was not disabled was inconsistent with the requirements of EU law to be found in the Framework Directive (2000/78/EC). She relies on the observation of the CJEU in Chacon Novas [2007] ICR 1, 21E (para. 43) where the court said:

"…the concept of 'disability' must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life."

44. Assuming that the ruling in Chacon binds this EAT: see Paterson, para. 78 and the approach of Lady Smith in Adams [2009] IRLR 612, and Cumming [2010] IRLR 109, and that the procedural Kumchyk rule ought not to prevent the EAT from considering this new point of European law, see Peterbroek (case C-312/93 (1995) ECR 1-4599), we are wholly unpersuaded that the temporal requirement (long term) in the domestic definition of disability is in any way inconsistent with the general objects and purpose of the Directive.
45. Accordingly, whilst we accept the general proposition contained in Chacon we are quite satisfied that it cannot render the findings of this Employment Tribunal that the Claimant was not, on the facts found, disabled in accordance with s.1 DDA, incompatible with the Directive.

Disposal

46. It follows that in our judgment, having admitted the fresh medical evidence, the inevitable consequence is that the appeal is allowed and the issue of disability must be remitted to the Employment Tribunal. The effect of that new evidence on the factual findings made below must be for the fact-finding tribunal, applying the law as we have endeavoured to state it.
47. The last remaining issue between the parties is whether the case may return to the same Employment Tribunal chaired by Employment Judge Forrest or must go to a freshly constituted tribunal.
48. Ms Monaghan strongly urges us to remit to a fresh employment tribunal. She submits that the Forrest Employment Tribunal formed a clear view of the Claimant's credibility which cannot be easily dislodged; there is a perception, if the same result obtains following remission of pre-judgment. We have considered the 'fairness' point anxiously; however, on balance we prefer the submission of Mr Bourne that the case can and should return to the Employment Tribunal already seized of the matter.
49. We bear in mind the helpful guidance on remission provided by Burton P in Sinclair Roche & Temperley v Heard [2004] IRLR 763, para. 46. Although the Employment Tribunal did not find the Claimant to be a reliable witness, we think that stemmed from the Claimant's failure to produce her medical records for the period 1993-2001. In the event, we have found that it was not due to lack of effort on her part, but a failure by her surgery to produce the full records for which she had asked in 2009 until August 2011. The basis for allowing the appeal is therefore not a wholesale failure in the Employment Tribunal's handing of the original PHR, but the emergence of fresh evidence. There is no allegation of bias. We have not found perversity (cf. DLA Piper). We do not doubt the professionalism of the members of the Forrest Employment Tribunal. That same panel has been allocated to the forthcoming hearing in March 2012. They are familiar with the issues. It would be proportionate to remit to that same Tribunal, as the Court of Appeal did in similar circumstances in Blundell.
50. All that said it must be for the Employment Tribunal to case manage the matter following remission. In particular, as to how far, if at all, the Employment Tribunal can proceed with the March hearing we have been shown para. 1 of Employment Judge Forrest's case management order dated 14 December 2011 and the final sentence of his letter dated 8 February 2012. We understand that the Respondent may wish to be heard on whether the hearing listed for 7-28 March will have to be adjourned, the Claimant's appeal having succeeded to the extent that the disability question will now return to the Employment Tribunal.
51. We would finally add this. The parties have indicated to us that they would prefer the disability issue to be included in the overall liability hearing, rather than be taken again as a preliminary issue. That appears to us to be a sensible course. Further, if the hearing is to be adjourned generally, it is for the Regional Employment Judge to determine whether the same or a different panel is allocated.

Postscript

52. Following our order made on 29 February 2012, disposing of this appeal, but before this Judgment has been handed down, we were informed by Thompsons that an RRO has been made in the Employment Tribunal. No application for an order under EAT rule 23A was made in the appeal.
53. By letter dated 7 March, at the invitation of this Appeal Tribunal, application was made on behalf of the Claimant for our published Judgment to be anonymised so as to preserve the integrity of the RRO made below by Employment Judge Watt on 18 May 2009. That Order was made under ET rule 50.
54. We shall accede to that application for the reason advanced. Our power to do so is discussed by Underhill P in A v B [2010] IRLR 844; see the supplementary Judgement, 856-858. At para. 17 the then President refers specifically to the order made by Cox J in J v DLA Piper, to which we have referred in this Judgment.